These Civil Miscellaneous Appeals have been filed by the appellant, against the Judgment and Decree dated 18.10.2006, in A.S.Nos.1 and 8 of 2006, respectively, on the file of the learned Subordinate Judge, Kulithalai, setting aside the judgment and decree in O.S.Nos.125 and 91 of 1998, respectively, on the file of the District Munsif Court, Kulithalai, remanding O.S.Nos.125 and 91 of 1998 on the file of the District Munsif Court.
2. The suit in O.S.No.125 of 1998 on the file of District Munsif Court, Kulithalai, was filed by one Lalitha, the appellant herein against the respondents in C.M.A.(MD).No.936 of 2007 for the relief of declaration of title and permanent injunction. The suit in O.S.No.91 of 1998 was filed by the first respondent herein for partition and separate possession of his 1/6th share and for past and future profits, against the appellant and other respondents in C.M.A.(MD).No.937 of 2007.
3. The suit property in O.S.No.125 of 1998 originally belonged to one Rathinam Chettiar, S/o.Rajalingam Chettiar. One Nagammal, who is the mother of the respondents herein, had purchased the said property by virtue of a registered sale deed, dated 07.10.1970 and 01.02.1971. From the date of the sale, the mother of the respondents viz., Nagammal became the owner of the said property and she got patta for the said suit property. The appellant herein has purchased the property from the said Nagammal by virtue of a registered sale deed dated 03.03.1998 for a sale consideration of Rs.45,000/- and the original title deed was delivered by Nagammal to the appellant. Thereafter, the appellant had applied for change of patta and the same was also effected in her name and the patta number is 1236. Thereafter, the first respondent/first defendant viz., Pandian, who is the son of Nagammal, filed O.S.No.91 of 1998 before the District Munsif Court, Kulithalai for partition and separate possession of his 1/6th share. However, both the suits were dismissed by the District Munsif Court, Kulithalai by judgment and decree dated 19.08.2005. Aggrieved by the same, the aggrieved parties have filed Appeal Suits in A.S.Nos.1 and 8 of 2006 before the Sub Court, Kulithalai. The learned Sub Judge allowed both the Appeal Suits and set aside the judgment and decree passed in O.S.Nos.125 and 91 of 1998 and remitted the matters back to the file of the District Munsif, Kulithalai, for fresh consideration. Against which, the appellant herein has filed the present Civil Miscellaneous Appeals before this Court.
4. The learned counsel appearing for the appellant raised a ground that while rendering a judgment and decree, the first Appellate Court, being a final Court of fact, ought to have given reasons and in the case on hand, the first Appellate Court has not given any valid reason for remanding the matters back to the Trial Court for consideration afresh and the failure to do so would amount to gross violation of principles of natural justice, which needs interference from this Court.
5. The learned counsel would further submit that mere inclusion of a property at the time of pendency of the appeals is not a reason to remand the case to the Trial Court once again for fresh consideration and in such an event, the first Appellate Court can very well direct the Trial Court to record evidence in respect of the properties included subsequently, if necessary and without doing so, the Court below remanded the matters, which, absolutely, needs interference at the hands of this Court.
6. The learned counsel appearing for the respondents in both the appeals would submit that the judgment and decree rendered by the First Appellate Court is just and proper and the Court below, considering the materials available, has rightly remanded the matter to the Trial Court for the purpose of letting in evidence with regard to the properties included subsequently. Therefore, the judgment and decree need not be interfered at the hands of this Court.
7. I have considered the submissions made by the the learned counsel on either side and perused the materials available on record.
8. On going through the counter affidavit filed by the defendants before the trial Court it could be seen that the first respondent herein had stated that at the time of purchasing some of the properties in the name of their father and mother, the defendants/respondents herein are minors. Some of the evidences show that the mother was doing milk vending business and also money lending business. The averments stated in the counter affidavit are not looked into by the first Appellate Court.
9. On going through the materials available on record this Court finds that the first appellate Court simply passed a judgment in two lines stating that pending appeal, the properties, namely four houses were included in the suit property and an amendment was carried out in O.S.No.91 of 1998 and in A.S.No.8 of 2006 in that regard and hence, an opportunity should be given to both parties to let in evidence with regard to the newly included properties and therefore, it is just and proper to remand the matters back to the Trial Court for deciding the issue afresh. Apart from that, no other reason has been given for such remittance. The first appellate Court, wherein the issue regarding fact can be raised in the appeal, has to record valid reasons while remitting the matters back to the Trial Court.
10. Under the Code of Civil Procedure, 1908 whether oral or documentary, it is the trial Court before whom parties are required to adduce their evidence. But in three exceptional circumstances additional evidence can be adduced before the appellate Court, as provided under S.107(1)(d) read with Rule 27 of Order XLI of the Code. Rule 27 of Order XLI reads as under:-
?27.Production of additional evidence in Appellate Court:- (1 )The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But If-
(i) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(iii) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whereever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.? From Sub-rule (1) of Rule 27, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate Court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Civil Procedure Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27.
11. It is not the case of the plaintiffs that an application was moved to include four houses and to adduce evidence in that regard, but the trial court refused to admit the same. In the case on hand, no application was moved before the trial court seeking amendment to include four houses and thereby to adduce evidence with regard to the four houses, nor can it be said that the parties with due diligence could not have moved such an application before the trial Court. In the case on hand, the plaintiffs in O.S.No.91 of 1998 can very well move an application before the trial Court to include four houses in the schedule of property and can adduce evidence in that regard, but they did not do so. But, four houses were included in the suit property and amendment was carried out in O.S.No.91 of 1998 and in A.S.No.8 of 2006 in that regard, only at the time of pendency of the appeals before the first appellate Court. Hence the conditions stipulated in Order 41 Rule 27(1)(i) and 27(1)(ii) are not fulfilled in this case.
12. Now it is to be seen whether the third condition, i.e. one contained in clause (iii) of Sub-rule (1) of Rule 27 is fulfilled or not.
13. In Union of India V. Ibrahim Uddin and another, the Hon'ble Apex Court has held that the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.............?
14. From the above judgment and on careful reading of Order 41 Rule 27(1)(iii) CPC, it is clear that only in the circumstances when the appellate court requires such evidence to pronounce the judgment or for any other substantial cause, the necessity to adduce additional evidence would arise and not in any other circumstances. In the case on hand, when the first appellate court itself permitted the plaintiffs to amend the properties in the Original Suit and the Appeal Suit by including four houses, it can very well pronounce the judgment based on the available witnesses and documents or / and when the first appellate Court itself was of the view that an opportunity should be given to both parties to let in evidence with regard to the newly included properties, which are included at the time of pendency of the appeals, then the first appellate Court itself can very well examine the witnesses and accept the documents to be marked by the witnesses in that regard and pronounce the judgment for the properties including the newly added four houses. Delayed justice will bring irreparable loss to the parties.
15. In view of the above facts and circumstances of the case and also considering that the Original Suits are of the year 1998 and the Appeal Suits are of the year 2006, this Court is of the view that the first appellate Court itself has to pronounce the judgment regarding the newly included houses, based on the available materials before it or if it feels that opportunity should be given to the parties to let in evidence regarding the newly added four houses, then the first appellate Court itself can examine the witnesses and mark the documents produced by them and pronounce the judgment regarding the schedule of properties, which include the amended properties also. If any pleadings which are raised before this Court are not acceptable to the learned counsel for the respondents, they can put forth their pleadings before the Lower Appellate Court since they have not filed any appeal before this Court. Fresh issues can be framed by the lower Appellate Court itself based on the fresh materials produced and evidences adduced before the said Court by both parties.
16. With the above observations, both the Civil Miscellaneous Appeals are allowed and the judgment and decree in A.S.Nos.1 and 8 of 2006, respectively, dated 18.10.2006 are set aside and the matters are remitted back to the first Appellate Court for fresh consideration. Since the Original Suits are of the year 1998 and the Appeal Suits are of the year 2006, this Court directs the first Appellate Court to pronounce the judgment within a period of six months from the date of receipt of a copy of this order, on the basis of the available materials before it or on the basis of the witnesses to be examined by it on day-to-basis and the documents produced by the witnesses. The parties are directed to cooperate with the first Appellate Court for speedy disposal of the cases. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Subordinate Court, Kulithalai.
2.The District Munsif Court, Kulithalai.
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
Note: Registry is directed to communicate the judgment copy to the 2nd and 3rd Respondents in C.M.A.(MD).No. 936 of 2007 and Respondents 5th and 6th in C.M.A.(MD).No.937 of 2007 .